As the civil rights era recedes into history, younger Americans in
particular fail to appreciate the courage of black leaders who challenged
segregated society, law professor Michael
Klarman, author of From Jim Crow to Civil Rights, The Supreme
Court and the Struggle for Racial Equality, told the audience
at a Feb. 2 talk sponsored by the Black Law Students Association to
kick off the Law School’s observation of Black History Month.
A better appreciation of history would increase public support for
affirmative action policies and other attempts to remedy the legacies
of racial oppression, he said.

Klarman focused on social conditions before the Supreme Court’s
landmark school desegregation decision, Brown v. Board of Education, in
1954.

Such famous black lawyers as Charles Hamilton Huston and Oliver Hill,
who boldly challenged Jim Crow society in the courts, faced the threat
of physical violence and, more insidiously, the racism of judges and
the legal system, Klarman said.

“Whites were deeply committed to the status quo and prepared
to use violence,” he said. During the 1930s, there were still
20 blacks being lynched in America every year, he noted.

Klarman cited the examples of Etoy Fletcher, who was severely beaten
and threatened with death for trying to register to vote in Mississippi
in 1946; D.V. Carter, an NAACP organizer in Montgomery County, Georgia,
who was severely beaten for promoting voter registration—one
man who took his advice, Isaac Nixon, was murdered for it; and Harry
Moore, founder of Florida’s Progressive Voter’s League,
who was killed with his wife when their house was bombed on Christmas
Day in 1951. Thurgood Marshall was nearly lynched in Tennessee in 1946
when he was defending clients arrested in a race riot, Klarman said.

White officials used other tactics to discourage blacks from approaching
the courts, too. Arthur Madison, a black lawyer who sued to compel
black voter registration in Montgomery County, Ala., was arrested,
convicted and disbarred for “not having permission to represent
his client.” His clients had been coerced into withdrawing their
consent, Klarman said, and no white lawyers would represent Madison.

Professional rules prohibit lawyers from soliciting clients or financing
litigation, Klarman explained. “But the NAACP often had to do
this to get blacks to act on their rights. They would ask for volunteers
at meetings and they had to generate an insurance fund because volunteers
invariably lost their jobs.”

The racism of judges further corrupted the legal system. The judges
of the U.S. Court of Appeals for the Fifth Circuit turned their backs
on black lawyers who were arguing a voting rights case and Justice
James C. McReynolds (the only alumnus of the Law School to sit on the
Supreme Court) turned his back on Charles Hamilton Huston as he argued
the 1938 case Missouri ex rel Gaines v. Canada, which involved
Missouri’s policy of paying black students to go to out-of-state
schools for professional training. Klarman called McReynolds “the
worst person to ever sit on the Supreme Court.”

Huston and Marshall saw a big part of their job as convincing Southern
blacks they could change the social system. Huston referred to himself
as an “evangelist and stump speaker” who was intent on “rallying
the troops.” They were particularly glad to be able to get opportunities
in courtrooms. “Whites were not used to blacks behaving as equals,
but that could happen in courtrooms,” Klarman pointed out.

Marshall was especially pleased to be able to question white police
officers on the stand. “We figured they would resent being questioned
by a Negro and would get angry and that would help us,” Klarman
quoted Marshall saying. ”It worked perfect. They all became angry
at a Negro pushing them into tight corners and making their lies so
obvious. Boy, did I like and that, and the Negroes in the courtroom
liked it. . . . You can’t imagine what that means to people down
there who have been pushed around for years.”

Referring to a case he handled in Hugo, Oklahoma, Marshall said he
was “trying to promote hope to the local community” and
be a role model of a black man having acquired the capacities to stand
up to a whites in a court.

But for all the pride and hope that raised in blacks, it did not change
circumstances or win cases in the face of the system’s own racism.
Klarman pointed to the heroic figure of Oliver Hill, a black Virginia
lawyer who found that being legally right was not sufficient in the
face of prejudice. He defended the Martinsville Seven on charges of
rape in a famous 1949 case that was fairly conducted “for its
day and place,“ Klarman said. The defendants had capable lawyers,
appointed months before the trial date, the judge and prosecutor were
fair, and the courtroom audience did not have a mob mentality, he said.
The facts showed the accused were guilty, and they were sentenced to
death by an all-white jury. Hill challenged the sentence on the grounds
that all the 45 men executed for rape in Virginia from 1905 to 1950
were black, that no whites were executed for that crime, and that it
is unconstitutional to apply the death penalty in a racially discriminatory
fashion. That claim eventually won in the Supreme Court in 1977, but
when Hill tried to make the point on behalf of the Martinsville Seven,
the Court denied review of the case.

“The system was so biased that you could make a compelling legal
argument and still not win. The Supreme Court was still not willing
to confront obvious racial injustice in the legal system. That was
the biggest obstacle [in the years before Brown.]” Reported by M. Marshall